In re: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION, CENTER FOR… v. BARACK OBAMA, President of the United States

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NATIONAL SECURITY AGENCY
TELECOMMUNICATIONS RECORDS
LITIGATION,
CENTER FOR CONSTITUTIONAL
RIGHTS; TINA M. FOSTER;
GITANJALI S. GUTIERREZ; SEEMA
AHMAD; MARIA LAHOOD; RACHEL
MEEROPOL,
Plaintiffs - Appellants,
v.
BARACK OBAMA, President of the
United States; NATIONAL SECURITY
AGENCY, Ltg. Keith B. Alexander,
Director; DEFENSE INTELLIGENCE
AGENCY, Ltg. Ronald L. Burgess, Jr.,
Director; CENTRAL INTELLIGENCE
AGENCY, Leon Panetta, Director;
DEPARTMENT OF HOMELAND
SECURITY, Janet Napolitano, Secretary;
FEDERAL BUREAU OF
INVESTIGATION, Robert S. Mueller III,
Director; JAMES R. CLAPPER, Director
of National Intelligence,
No. 11-15956
D.C. No. 3:06-md-01791-VRW
Northern District of California,
San Francisco
MEMORANDUM*
FILED
JUN 10 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Submitted June 3, 2013 **
San Francisco, California
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
The Center for Constitutional Rights (CCR) appeals the district court’s
dismissal on standing grounds of its suit challenging the National Security
Agency’s program of warrantless surveillance, referred to as the Terrorist
Surveillance Program (TSP), which ended in 2007. We have jurisdiction under 28
U.S.C. § 1291 and, reviewing de novo, we affirm.
The Supreme Court in Clapper v. Amnesty Int’l, 133 S. Ct. 1138 (2013),
addressed a substantially similar challenge to surveillance conducted under the
Foreign Intelligence Surveillance Act Amendments Act of 2008, 50 U.S.C.
§ 1881a. The Court held the plaintiffs lacked standing because they could not
demonstrate that they were injured by the Act. Of the five steps that the Court
identified in the “highly attenuated chain” of alleged injury there, Amnesty Int’l,
133 S. Ct. at 1148, four of them apply to CCR’s challenge. The plaintiffs here

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“fear that: (1) the Government [decided] to target the communications of non-U.S.
persons with whom they communicate; (2) in doing so, the Government [chose] to
[utilize the TSP] rather than utilizing another method of surveillance . . . (4) the
Government [succeeded] in intercepting the communications of [their] contacts;
and (5) [plaintiffs were] parties to the particular communications that the
Government intercept[ed].” Id. Like the Amnesty Int’l plaintiffs, the CCR
plaintiffs “have no actual knowledge of the Government’s . . . targeting practices.”
Id.
One link in the speculative chain is inapplicable here: the fear that “(3) the
Article III judges who serve on the Foreign Intelligence Surveillance Court [FISC]
will conclude that the Government’s proposed surveillance procedures satisfy
§ 1881a’s many safeguards and are consistent with the Fourth Amendment.” Id.
Although CCR might have a slightly stronger basis for fearing interception because
of the lack of FISC involvement, CCR’s asserted injury relies on a different
uncertainty not present in Amnesty Int’l, namely, that the government retained
“records” from any past surveillance it conducted under the now-defunct TSP. In
sum, CCR’s claim of injury is largely factually indistinguishable from, and at least
as speculative as, the claim rejected in Amnesty Int’l.
AFFIRMED.

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